GREEN v. WETZEL et al

Filing 134

ORDER denying 123 Motion to Appoint Counsel ; denying 129 Motion with New Matter. Signed by Magistrate Judge Richard A. Lanzillo on 11/26/2019. (dm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

TYRONE GREEN,
Plaintiff,
V.

SECRETARY WETZEL, et al.,
Defendants

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Case No. 1:18-cv-00093 (Erie)

United States Magistrate Judge
Richard A. Lanzillo

ORDER ON PLAINTIFF'S MOTION FOR APPOINTMENT OF COUNSEL
Plaintiff Tyrone Green, a prisoner in the custody of the Pennsylvania Department of
Corrections ("DOC"), filed this pro se civil rights action on pursuant to section 1983. Presently
pending before the Court is Plaintiffs motion for appointment of counsel, filed on October 30,
2019, and a related document, filed on November 8, 2019. ECF Nos. 123; 129.

I.

Standard of Review
In Tabron v. Grace, 6 F.3d 147 (3d Cir. 1993), the Third Circuit identified factors to be

considered by the district courts in exercising their discretion whether to "appoint" counsel
pursuant to 28 U.S.C. § 1915(d). 1 These factors have been affirmed many times as the
appropriate bases for review. See, e.g., Montgomery v. Pinchak, 294 F.3d 492 (3d Cir. 2002).
"As a threshold matter, a district court must assess whether the claimant's case has some
arguable merit in fact and in law." Tabron at 155. The court should not appoint counsel unless

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Although 28 U.S.C. § 1915(d) does not authorize the court to "appoint" counsel, it authorizes the court to
"request" an attorney to represent a litigant who is unable to employ counsel on his own. The importance of the
distinction was recognized by the Supreme Court in Mallardv. United States District Court, 490 U.S. 296 (1989).

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it appears that the claim has some merit. Id. Provided that this consideration is satisfied, the
court must then consider the following factors to determine whether to appoint counsel:
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the plaintiffs ability to present his or her own case;
the difficulty of the particular legal issues;
the degree to which factual investigation will be necessary and the ability of the
plaintiff to pursue investigation;
the plaintiffs capacity to retain counsel on his or her own behalf;
the extent to which a case is likely to turn on credibility determinations, and;
whether the case will require testimony from expert witnesses.

Montgomery, at 499 (quoting Tabron at 155-157).
The Third Circuit has also recognized that there are significant practical restraints on the
district court's ability to "appoint" counsel, including: "the ever-growing number of prisoner
civil rights actions filed each year in the federal courts; the lack of funding to pay appointed
counsel; and the limited supply of competent lawyers who are willing to undertake such
representation without compensation." Tabron, 6 F.3d at 157. Additionally, there are many cases
in which district courts attempt to appoint counsel but find no attorney willing to accept the
appointment:
[T]he frequent unwillingness of lawyers to accept appointment in
such cases is not only a function of the time pressures lawyers face
in trying to earn a living in an increasingly competitive field, but
also by circulating knowledge of the indignities that some lawyers
have been subjected to by certain litigants, including verbal and
written abuse, excessive demands and complaints, arid malpractice
suits. We trust the district judges will be sensitive to such problems
in making discretionary decision in the area.

Id. at 157 n. 7. The Tabron Court also recognized that volunteer lawyer time is extremely
valuable and a district court should not request counsel under§ 1915 indiscriminately:
Volunteer lawyer time is a precious commodity ... Because this
resource is available in only limited quantity, every assignment of
a volunteer lawyer to an undeserving client deprives society of a
volunteer lawyer available for a deserving cause. We cannot afford
that waste.
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Id at 157.
While this Court would undoubtedly benefit from having capable, experienced counsel
available to assist and advise all prisoners before they file suit and to represent all prisoner
plaintiffs who survive dismissal (under 28 U.S.C. § 1915(e) or for failure to state a claim under
Rule 12(b)(6) of the Federal Rules of Civil Procedure), there are simply not enough attorneys in
this District who are willing to undertake such representation. In addition to the factors
discussed by the Court of Appeals, this Court recognizes other factors that dissuade attorneys
from representing prisoners. Simply interviewing a prisoner client requires a trip to a prison,
sometimes at a great distance from the lawyer's office, and frequently a long wait at the prison
until the prisoner can be produced for the interview.
The number of attorneys in this District who are available to-volunteer to represent
prisoners is limited while the number of prisoners who request counsel is high. Moreover, the
Erie division of this District does not have a referral system in place, as does the Pittsburgh
division, and few attorneys in the local Bar have expressed a willingness to handle these cases.
Therefore, this Court must carefully consider all the factors identified by the Court of Appeals as ,
well as any other considerations related to the specific case in exercising its discretion when
considering a motion for the "appointment" of counsel.
II.

Analysis
In his complaint, Plaintiff alleges that various Defendants violated his First, Eighth, and

Fourteenth Amendment rights by engaging in retaliatory actions, denying him adequate medical
care, and a host of other issues. See ECF No. 5. However, in his Motion for the Appointment of
Counsel, Plaintiff asserts a wholly new and independent basis for potential relief: the alleged

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discovery that he contracted Hepatitis A, that prison officials knew of this infection, and that
they failed to inform him thereof.
In response, Defendants submitted the affidavit of Dr. Stephen Wi~ner, the Medical
Director at SCI Phoenix. ECF No. 133-1. The affidavit states that Dr. Wiener reviewed
Plaintiffs filings, the basis for Plaintiffs belief that he contracted Hepatitis A, and the relevant
laboratory reports. After careful analysis thereof, Dr. Wiener stated that Plaintiff does not have
an active infection of any type of Hepatitis virus. Id. Dr. Wiener attributes Plaintiffs confusion
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to a misinterpretation of laboratory results, which indicated that Plaintiff tested positive for
certain antibodies related to Hepatitis A. Id. The presence of these antibodies means that
Plaintiff either (1) was vaccinated for Hepatitis A, or (2) contracted Hepatitis A at a prior time,
but no longer is infected. Id.
Before proceeding to the Tabron factors, the Court notes that the threshold issue in the
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court's determination of whether to appoint counsel is whether Plaintiffs claim is potentially
meritorious. See Tabron, 6 F.3d 147 at 155 ("As a threshold matter, a district court must assess
whether the claimant's case has some arguable merit in fact and in law.")

Here, Plaintiff has

framed his request for counsel as one that seeks assistance with a "new matter." Indeed, it is
unclear to the Court how a Hepatitis infection would constitute a basis for the appointment of
counsel in this case. Potentially, Plaintiff seeks counsel's assistance to determine whether to
initiate a new civil action. Regardless, given the information provided in Dr. Wiener's affidavit,
the Court finds that Plaintiffs claim that he contracted Hepatitis A and that prison personnel
failed to disclose the infection lacks any merit. Thus, it does not provide a basis for the
appointment of counsel. Because Plaintiff has failed to meet the threshold determination of

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whether his claim has arguable merit, the Court need not, and does not, address the remaining
Tabron factors.
Plaintiffs motion for appointment of counsel (ECF No. 123) and his related filing (ECF
No. 129) are therefore DENIED, without prejudice. Plaintiff may renew his motion, ifhe so
desires, should Plaintiffs claim continue to remain viable at subsequent stages of this litigation,
based upon the factors handed down in Tabron.

It is so ordered.

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RICHARD A. LANZILLO
UNITED STATES MAGISTRATE JUDGE
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Entered this 26 th ofNovember, 2019.

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